Citation Nr: 1536621
Decision Date: 08/26/15 Archive Date: 09/04/15
DOCKET NO. 14-02 365 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to service connection for a hearing loss disability.
REPRESENTATION
Appellant represented by: North Carolina Division of Veterans Affairs
ATTORNEY FOR THE BOARD
H.A. Beach, Counsel
INTRODUCTION
The Veteran served on active duty from July 18 to July 31, 1953.
THE VETERAN'S POTENTIAL ENTITLEMENT TO SERICE CONNECTION FOR HEARING LOSS HAS BEEN RAISED, BUT NOT LEGALLY ADJUDICATED BY VA. IT IS REFERRED TO THE VA REGIONAL OFFICE FOR APPROPRIATE PROCESSING UNDER THE LAW.
FINDING OF FACT
The Veteran has not filed a claim of service connection for hearing loss.
CONCLUSION OF LAW
There being no rating decision as to service connection for hearing loss, no notice of disagreement has been filed and the Board of Veterans' Appeals (Board) has no jurisdiction in this matter. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2014);
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In November 2014, the Board remanded to the VA Appeals Management Center (AMC) in Washington, D.C. the Veteran's then-pending claim of entitlement to service connection for right ear otitis media. The Board directed in part that the Veteran undergo a VA examination, which was conducted in February 2015.
In March 2015, following the requested development, the AMC granted the Veteran service connection for right otitis media and assigned a 10 percent rating, effective November 30, 2011. That action represented a full grant of benefits sought with respect to the claim of service connection for right otitis media. The AMC noted, however, during the February 2015 VA examination, the examiner had reported that the Veteran had complaints of hearing difficulty. The VA examiner suggested that an audiologic examination be performed in order to determine if the Veteran had a hearing loss disability caused by his otitis media.
The AMC found that the issue of entitlement to service connection for a hearing loss disability was inextricably intertwined, and that issue was added to the appeal pertaining to right ear otitis media. However, the AMC purported to deny what it identified as a claim in a June 2015 Supplemental Statement of the Case.
First, the granted claim of service connection for otitis media and the purported claim of service connection for hearing loss are not inextricably intertwined as found by the AMC. In order for claims to be "inextricably intertwined," they must essentially linked so that a decision on one cannot be rendered without the risk of that decision binding the adjudication of the other. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Here, the fully-granted claim of service connection for right ear otitis media may be sustained without any further action on the purported claim of service connection for hearing loss.
Moreover, the AMC's action in attempting to deny service connection for hearing loss in a Supplemental Statement of the Case is a nullity. VA's adjudication procedures are established by law involving the filing of a claim; the Regional Office advising and assisting the Veteran as to substantiation of the claim; the issuance of a rating decision with explanation of the reasons and bases of the decision and if denied; the claimant's option to disagree with the decision by filing a notice of disagreement (giving the Board jurisdiction of the appeal); the issuance of the statement of the case by the Regional Office; and the completion of the substantive appeal. See generally Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002); Anderson v. Principi, 18 Vet.App. 371 (2004); Acosta v. Principi, 18 Vet.App. 53 (2004); Tomlin v. Brown, 5 Vet.App. 355 (1993) (all generally discussing the process of claims adjudication and the role of each document).
Appellate review of a rating decision is initiated by a NOD and completed Substantive Appeal after a SOC has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. However, a statement of the case or supplemental statement of the case is not a rating decision. 38 C.F.R. § 19.29.
The mention of a possible connection between the Veteran's now service-connected right ear otitis media, and/or military service with hearing loss should have been referred to the AOJ for initial claims advisement and development. However, because there is no rating decision denying service connection for hearing loss, there is no notice of disagreement that would confer jurisdiction to the Board.
The Board expresses no opinion as to the merits of the Veteran's entitlement to service connection for hearing loss. THE VETERAN IS ADVISED that he should contact the VA Regional Office and his Veterans Service Officer to file a formal claim of service connection for hearing loss, should he desire to do so.
ORDER
The matter is dismissed.
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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs